Citation Nr: 1146712
Decision Date: 12/22/11 Archive Date: 12/29/11
DOCKET NO. 08-37 214 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and anxiety.
2. Entitlement to service connection for alcohol abuse, claimed as secondary to depression and anxiety.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Layton, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1986 to December 1986, and from May 2003 to May 2004.
This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Regional Office (RO) in Newark, New Jersey.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran has asserted that his claimed psychiatric disorder did not begin during his active duty; rather, he has specifically claimed that he has a psychiatric disorder that was aggravated during his active duty.
A private medical record dated in May 2001 shows that the Veteran was seen for depression. It was noted that the Veteran had previously been prescribed Prozac. Diagnoses of dysthymic disorder and alcohol dependence in remission were given. VA treatment records dating from the time the Veteran was on active duty show that he completed a Substance Abuse Treatment Program in September 2003. Following the Veteran's active duty tour, additional VA treatment notes show that the Veteran began treatment for major depression in July 2004.
The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In light of the private and VA treatment records available, in connection with the Veteran's completion of a substance abuse program while on active duty, the Board finds that the Veteran should be afforded a VA examination to determine if he has a psychiatric disorder that was aggravated by his active duty service.
Additionally, the Board observes that numerous efforts have been made to obtain the Veteran's service treatment records; however, none of the Veteran's service treatment records have been associated with the claims file. Significantly, no formal finding has been made regarding the availability of the Veteran's service treatment records. The Board emphasizes that records generated by federal facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should either associate the Veteran's service treatment records with the claims file or make a formal finding that the records are unavailable.
The Veteran has additionally asserted that on occasion during his last period of active duty, he reported for duty under the influence. He said that information should be located in his service personnel records. On remand, the AMC/RO should associate the Veteran's service personnel records with the claims file.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should attempt to obtain the Veteran's service treatment and personnel records from his active duty and associate them with the claims file. If the service treatment and personnel records are unavailable, a formal finding should be issued which details the efforts that were made to obtain the records.
2. After all available records have been obtained and associated with the claims file, the Veteran should be scheduled for examination by an appropriate physician for an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that he has an acquired psychiatric disability which was incurred in or aggravated during any period of active duty service.
If and only if the examiner determines that it is at least as likely as not that the Veteran has an acquired psychiatric disability which was incurred in or aggravated during his active duty service, the physician is requested for an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that he has an alcohol-related disability which was caused or aggravated beyond the normal progression of the disease by his acquired psychiatric disorder.
Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for the opinions expressed, should be set forth in the examination report. Sustainable reasons and bases must be given for any opinion rendered.
3. The RO/AMC should also undertake any other development, to include due process and notice considerations, it determines to be warranted.
4. Then, the RO or the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).